"Effectiveness" relates to the Options, the Crime question and perhaps the last Human Rights question.
Key aspects in answering an "effectiveness" question include:
Evaluate/Assess/Discuss/how/to what extent... are often used in conjunction with effectiveness.
To do this you need to demonstrate higher order thinking skills.
The trend is for a top category response in the marking guidelines to make an informed judgement.
You must explain what the law is and what purpose it serves.
Comment on the legal and non-legal measures - analyse and evaluate
Develop an argument/point of view - evaluate/demonstrate understanding and awareness of implications / deal with effectiveness. The use of legislation, cases, media reports/issues, documents etc adds weight to what you are saying.
Refer to criteria for evaluation / assessment. Give a value to this criteria - e.g poor; limited; significant etc
Criteria to use in measuring the effectiveness is explicitly outlined in the Preliminary Syllabus. These include:
– resource efficiency
– accessibility
– enforceability
– responsiveness
– protection of individual rights
– meeting society’s needs
– application of the rule of law
– has justice been achieved?
RESOURCE EFFICIENCY Resource efficiency refers to how efficiently and effectively available resources are used when dealing with problems and achieving just outcomes. Most of the time, it refers to the use of resources allocated by the government. ‘Resources’ can refer to available funds, but also to the time and expertise of professionals like judges or solicitors, or the limited availability of venues like courtrooms.
At times there may not be enough resources (a common problem) or the resources used may be wasted or allocated to the wrong areas. For example, this might occur if services are unnecessarily duplicated or if particular processes do not appear to be working but resources are still being directed toward them.
ACCESSIBILITY Access to the legal system is essential in achieving justice. It refers to the availability the legal system and the removal of barriers to achieving equal justice for all. Access includes many different aspects, for example access to the law itself, access to timely and affordable legal advice, access to adequate legal representation or access to appropriate courts and dispute resolution mechanisms.
Access may be restricted when a person has little or no knowledge of the law and how the system works. It may also be difficult for such people to know where the costs lie and/or where the delays in the system occur. In addition, quality legal advice, information and representation may not be available to those who cannot afford a private lawyer. Access can also be denied because of legal structures, for example where individuals cannot access complaint mechanisms in international human rights treaties.
ENFORCEABILITY For laws to be effective they must also be enforceable. Enforceability refers to the mechanisms or processes in place to ensure people and/or institutions comply with the law. It refers to a number of different levels of enforceability – for example: • Is the law clearly drafted and are people likely to comply? • Is there some mechanism for compliance or penalty for non‐compliance? • Are there are enough resources to police the law and pursue those who violate it? • Are there appropriate court systems in place to ensure breaches can be enforced?
Issues of enforceability might arise, for example, in laws directed at people’s domestic life, where it might be near impossible for police to know about or investigate breaches, or some international laws where treaties may not include any mechanisms or institutions to actually enforce them.
RESPONSIVENESS This refers to the ability of the law to respond to needs or issues within the community. It refers to the flexibility of the law and its capacity to adapt to new situations to achieve justice. The law can often be slow to evolve and respond to changes in society, such as shifts in public morality, new technology or when methods of justice are failing. In considering the responsiveness of the law, both the common law (the responsiveness of courts) and statute law (the responsiveness of parliament) should be considered.
In the area of technology, for example, the law has been fast to respond in some areas – Australia was one of the first countries in the world to introduce legislation prohibiting the sending of electronic spam – whereas in other areas, the law has been particularly slow to respond. For example, taping television programs at home has been practised in most homes in Australia since the 1980s, but copyright law did not actually legalise it until 2006.
PROTECTION OF INDIVIDUAL RIGHTS As citizens, we all expect the law to protect our individual rights – all areas discussed above will impact on how the law protects these rights, such as accessibility, enforceability or responsiveness. Some individuals, particularly when they belong to a minority group in a community, may experience more difficulty having their rights recognised and protected by the law – for example, the rights of Aboriginal and Torres Strait Islanders, same‐sex couples or refugees. This can lead to injustices in the legal system.
This can be a result of the processes by which law is made – for example, parliament passing a statute usually requires the political support of the majority, which can often mean that the needs of minority groups go unheard or are overridden. Another area where individual rights can be a concern is in the rights of suspects or the accused in criminal law – for example, recent anti‐terrorism legislation has been criticised as altering long‐standing criminal rights and processes by making changes like extending periods of detention without charge.
MEETING SOCIETY’S NEEDS This is a broad area of discussion and will vary significantly depending what area of law is being investigated. Looking at research and statistics studied in class and considering the future implications of the issue are a good starting point. The difficulty lies in identifying what society’s needs are, as this question is often contentious or politically charged, and then assessing to what extent this need is being met.
For example, the law may be attempting to respond to some form of anti‐social behaviour for the protection of the community, it may be attempting to improve the rights of consumers, or may be in response to environmental concerns. Society’s needs can sometimes appear to be in conflict with individual rights, but ultimately the best laws will meet society’s needs without infringing on the rights of the individual.
APPLICATION OF THE RULE OF LAW The rule of law is the principle that no one is above the law. It requires government authority to be exercised in accordance with written, publicly disclosed laws that are adopted and enforced in accordance with established processes. Where there is an absence or breakdown of the rule of law there may be a failing of democratic processes and procedures.
Issues in application of the rule of law may arise where there is potential bias or favouritism in a law, where the law unfairly targets some groups or individuals but not others, or where there is a lack of transparency in how a law is adopted or applied.
HAS JUSTICE BEEN ACHIEVED? This can be a subjective judgment, but you should stay as objective as possible – examining each of the above criteria in an objective way and considering how they apply to the issue is a good starting point. You should make sure your analysis covers multiple sides of the issue and does not focus too heavily on one side of the argument. In addition to the above criteria, concepts like fairness, impartiality and equality are essential in assessing whether justice has been achieved. This applies to both the processes involved and the outcome.
You should also critically examine any result by looking at its implications rather just describing it – for example, has the situation been resolved, has it improved or become worse, or has it just shifted the problem somewhere else? Important to this analysis is whether maximum justice has been achieved for both the parties involved and for the community at large. You should consider whether any future reforms to the law could help achieve better justice.
However, these criteria are not the only criteria you can use. Yo can also refer to additional criteria such as the purpose of punishment for example.
Lastly, one way that students have attempted to remember the criteria is through the following acronyms.
"Effectiveness" relates to the Options, the Crime question and perhaps the last Human Rights question.
Key aspects in answering an "effectiveness" question include:
Criteria to use in measuring the effectiveness is explicitly outlined in the Preliminary Syllabus. These include:
– resource efficiency
– accessibility
– enforceability
– responsiveness
– protection of individual rights
– meeting society’s needs
– application of the rule of law
– has justice been achieved?
RESOURCE EFFICIENCY
Resource efficiency refers to how efficiently and effectively available resources are used when dealing with problems and achieving just outcomes. Most of the time, it refers to the use of resources allocated by the government. ‘Resources’ can refer to available funds, but also to the time and expertise of professionals like judges or solicitors, or the limited availability of venues like courtrooms.
At times there may not be enough resources (a common problem) or the resources used may be wasted or allocated to the wrong areas. For example, this might occur if services are unnecessarily duplicated or if particular processes do not appear to be working but resources are still being directed toward them.
ACCESSIBILITY
Access to the legal system is essential in achieving justice. It refers to the availability the legal system and the removal of barriers to achieving equal justice for all. Access includes many different aspects, for example access to the law itself, access to timely and affordable legal advice, access to adequate legal representation or access to appropriate courts and dispute resolution mechanisms.
Access may be restricted when a person has little or no knowledge of the law and how the system works. It may also be difficult for such people to know where the costs lie and/or where the delays in the system occur. In addition, quality legal advice, information and representation may not be available to those who cannot afford a private lawyer. Access can also be denied because of legal structures, for example where individuals cannot access complaint mechanisms in international human rights treaties.
ENFORCEABILITY
For laws to be effective they must also be enforceable. Enforceability refers to the mechanisms or processes in place to ensure people and/or institutions comply with the law. It refers to a number of different levels of enforceability – for example:
• Is the law clearly drafted and are people likely to comply?
• Is there some mechanism for compliance or penalty for non‐compliance?
• Are there are enough resources to police the law and pursue those who violate it?
• Are there appropriate court systems in place to ensure breaches can be enforced?
Issues of enforceability might arise, for example, in laws directed at people’s domestic life, where it might be near impossible for police to know about or investigate breaches, or some international laws where treaties may not include any mechanisms or institutions to actually enforce them.
RESPONSIVENESS
This refers to the ability of the law to respond to needs or issues within the community. It refers to the flexibility of the law and its capacity to adapt to new situations to achieve justice. The law can often be slow to evolve and respond to changes in society, such as shifts in public morality, new technology or when methods of justice are failing. In considering the responsiveness of the law, both the common law (the responsiveness of courts) and statute law (the responsiveness of parliament) should be considered.
In the area of technology, for example, the law has been fast to respond in some areas – Australia was one of the first countries in the world to introduce legislation prohibiting the sending of electronic spam – whereas in other areas, the law has been particularly slow to respond. For example, taping television programs at home has been practised in most homes in Australia since the 1980s, but copyright law did not actually legalise it until 2006.
PROTECTION OF INDIVIDUAL RIGHTS
As citizens, we all expect the law to protect our individual rights – all areas discussed above will impact on how the law protects these rights, such as accessibility, enforceability or responsiveness. Some individuals, particularly when they belong to a minority group in a community, may experience more difficulty having their rights recognised and protected by the law – for example, the rights of Aboriginal and Torres Strait Islanders, same‐sex couples or refugees. This can lead to injustices in the legal system.
This can be a result of the processes by which law is made – for example, parliament passing a statute usually requires the political support of the majority, which can often mean that the needs of minority groups go unheard or are overridden. Another area where individual rights can be a concern is in the rights of suspects or the accused in criminal law – for example, recent anti‐terrorism legislation has been criticised as altering long‐standing criminal rights and processes by making changes like extending periods of detention without charge.
MEETING SOCIETY’S NEEDS
This is a broad area of discussion and will vary significantly depending what area of law is being investigated. Looking at research and statistics studied in class and considering the future implications of the issue are a good starting point. The difficulty lies in identifying what society’s needs are, as this question is often contentious or politically charged, and then assessing to what extent this need is being met.
For example, the law may be attempting to respond to some form of anti‐social behaviour for the protection of the community, it may be attempting to improve the rights of consumers, or may be in response to environmental concerns. Society’s needs can sometimes appear to be in conflict with individual rights, but ultimately the best laws will meet society’s needs without infringing on the rights of the individual.
APPLICATION OF THE RULE OF LAW
The rule of law is the principle that no one is above the law. It requires government authority to be exercised in accordance with written, publicly disclosed laws that are adopted and enforced in accordance with established processes. Where there is an absence or breakdown of the rule of law there may be a failing of democratic processes and procedures.
Issues in application of the rule of law may arise where there is potential bias or favouritism in a law, where the law unfairly targets some groups or individuals but not others, or where there is a lack of transparency in how a law is adopted or applied.
HAS JUSTICE BEEN ACHIEVED?
This can be a subjective judgment, but you should stay as objective as possible – examining each of the above criteria in an objective way and considering how they apply to the issue is a good starting point. You should make sure your analysis covers multiple sides of the issue and does not focus too heavily on one side of the argument. In addition to the above criteria, concepts like fairness, impartiality and equality are essential in assessing whether justice has been achieved. This applies to both the processes involved and the outcome.
You should also critically examine any result by looking at its implications rather just describing it – for example, has the situation been resolved, has it improved or become worse, or has it just shifted the problem somewhere else? Important to this analysis is whether maximum justice has been achieved for both the parties involved and for the community at large. You should consider whether any future reforms to the law could help achieve better justice.
However, these criteria are not the only criteria you can use. Yo can also refer to additional criteria such as the purpose of punishment for example.
Lastly, one way that students have attempted to remember the criteria is through the following acronyms.